Circumstantial Evidence Law in Florida

Circumstantial Evidence Law in Florida

Posted By
Horwitz & Citro, P.A.

The case of
Remor v. State, 991 So. 2d 957 (Fla. 4th DCA 2008) involved a prosecution for attempted
burglary of a structure and possession of burglary tools, together with
resisting arrest without violence.

The defendant was in Indian River County at the time of a hurricane and
was found walking at night with another individual during curfew hours.
When the police attempted to stop the defendant he ran away and was later
caught. The defendant was wearing dark clothing, gloves, a shirt wrapped
around his neck, and a miner's light. He had no tools on his person.

The defendant's car was found to contain an empty black drill case,
duct tape and a pair of pliers; and about five feet from the car was a
drill case wrapper. No drill was ever found.

The police then took the defendants to the nearby shopping mall and noticed
two wooden boards missing from the window of Sound Frontier, a store in
the mall. The boards were on the ground and still had the screws in them.
There was no evidence of shattered glass, pry marks or tampering with
the locks on the door. When questioned by the police, the defendant stated
that he was in the area working for a utility company to help restore
power affected by the hurricane. The defendant also stated he intended
to sleep in his vehicle and was walking toward the storefront to get a
better look at the storm.

At the trial the defense called a witness to testify that he had sent the
defendant, together with a second work team, to the hurricane area. The
company, Energy Concepts, was a business which sent repair crews to disaster
areas. The defendant, as well as the other people in the two crews were
assigned to meet with local power and cable companies to obtain jobs after
the storm.

The defendant moved for a judgment of acquittal, contending that the state
had not established burglary or the possession of burglary tools.

The appellate court ruled that the trial court had committed error by failing
to grant the judgment of acquittal and reversed both the attempted burglary
and possession of burglary tools. The court noted that there was no direct
evidence linking the defendant to the removal of the window boards at
Sound Frontier. The court further stated that:

Where a verdict is based wholly on circumstantial evidence, a special standard
of review is applicable.
See State v. Law, 559 So. 2d 187, 188 (Fla. 1989). "A motion for judgment of acquittal
should be granted in a circumstantial evidence case if the state fails
to present evidence from which the jury can exclude every reasonable hypotheses
except that of guilt."
Id. As the supreme court has written,

[i]t is the trial judge's proper task to
review the evidence to determine the presence or absence of competent evidence
from which the jury could infer guilt to the exclusion of all other inferences.
That view of the evidence must be taken in light most favorable to the
state. The state is not required to 'rebut conclusively every possible
variation' of events which could be inferred from the evidence, but
only to introduce competent evidence which is inconsistent with the defendant's
theory of events. Once that threshold burden is met, it becomes the jury's
duty to determine whether the evidence is sufficient to exclude every
reasonable hypothesis of innocence beyond a reasonable doubt.

The court noted that presence near the scene of a burglary, without more,
is not enough to support a burglary conviction.
Garcia v. State, 899 So. 2d 447, 450 (Fla. 4th DCA 2005). The court went on to note that:

In
Garcia, the police had responded rapidly to a burglary victim's residence
and issued a BOLO for a van believed to have been used in connection with
the burglary.
Id. at 448. Garcia was a passenger in the van, which was stopped within ten
minutes of the BOLO.
Id. at 450. The state argued that the defendant's presence in the van,
coupled with his proximity to the stolen property, constituted sufficient
proof of his intent to participate in a burglary.
Garcia, 899 So. 2d at 450.

The conviction was reversed, however, because the court held that standing
alone, the evidence "[did] not preclude every reasonable inference
that the [defendant] did not intend to participate" in the crime.
Garcia at 450. This is in conformance with the rule of law that mere knowledge
of an offense and mere presence at the scene of the crime are insufficient
to establish participation.

Likewise, the case of
Beckford v. State, 964 So. 2d 793 (Fla. 4th DCA 2007) held that mere presence near the scene
of a burglary was insufficient circumstantial evidence to support a conviction.
In that case, there was no physical evidence connecting the defendant
to the attempted break-in of a house where he was seen in front of the
house, and left after being confronted by a neighbor. The court held that
the state's evidence was not inconsistent with the reasonable hypothesis
that the defendant was legitimately in the area when first seen by the
neighbor. The court also noted because a suspect is present at the scene
of the crime and flees after it has been committed is insufficient to
exclude every reasonable hypothesis of innocence. It noted that evidence
of flight is relevant to infer a consciousness of guilt where there is
a sufficient connection between the flight and the crime for which the
defendant is charged.

In this particular case, the flight from the police officer was consistent
with fleeing the officer because the defendant was in an area subject
to a curfew, therefore, the assumption that fleeing was consciousness
of guilt did not carry forward to consciousness of guilt to the attempted
burglary or possession of burglary tools because it was consistent with
consciousness of guilt of violating the curfew.

In discussing burglary tools, the court noted that the miner's light
might be a burglary tool if the surrounding circumstances showed that
it was actually intended to be used as a tool to perpetrate the crime.
No such evidence was present. In discussing the crime of possession of
burglary tools, the Supreme Court noted that almost any tool can be a
burglary tool depending on the facts. In the case of
Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988) the court stated:

[T]he specific intent to commit a burglary or trespass using tools, instruments
or machines in the defendant's possession or control exists when he
or she engages in or causes some overt act toward the commission of the
burglary or trespass, which goes beyond merely thinking or talking about
it. The overt act necessary to prove intent need not be limited to the
actual use of an item in committing the trespass or burglary, but need
only manifest the specific criminal intent.

The total circumstances under which a tool is possessed determines whether
it is a burglary tool in violation of the statute. In
Thomas, the defendant was seen jumping over a fence and running away. At the
time the defendant was caught he was wearing a pair of socks on his hands
and carrying a screwdriver (when he was caught he admitted that he entered
the area to commit a burglary). Under those facts, the screwdriver was
deemed to be a burglary tool.

The court noted that there was no evidence from which it could be inferred
that the defendant intended to use the miner's light as a tool in
the burglary.